Dying without a will and the damage it causes

Dying without a will causes all children to be treated equally under Texas intestacy laws. Not all of your children have equal needs.

When someone dies without a will in Texas, the state's intestacy laws decide who inherits. These laws treat every child the same, so each receives an equal share. That may seem fair on the surface, but it often fails families that include a child with special needs.

$2,000Resource limit for SSI and Medicaid

$100,000ABLE balance disregarded for SSI

$20,000Annual ABLE contribution limit in 2026

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How Texas Intestacy Laws Treat Children

A child with special needs may require significantly more financial support, and more carefully structured resources, for the rest of their life. Equal division under intestacy can leave them under-protected and, worse, can jeopardize the government benefits they rely on.

Not everything goes through probate. Intestacy rules only govern assets that pass through probate. Many assets avoid probate completely, including living trusts, life insurance, accounts with named beneficiaries, TOD and POD accounts, and property held in joint tenancy with right of survivorship. Those pass to whoever is named, which creates the same problem if a disabled child is named directly.

Community Property and the Order of Inheritance

Texas is a community property state. Most property acquired during marriage is considered owned equally by both spouses. When the first spouse dies, their share of the community property often passes to the surviving spouse. But if the deceased spouse has children from a prior relationship, their half of the community property goes to their children instead. Separate property follows different rules.

If there is no surviving spouse, the children inherit next. The estate is typically divided equally among them.

The Unique Problems Facing a Child with Special Needs

Equal shares create serious difficulties when one child has a disability. That child often needs more resources than their siblings, yet intestacy law makes no exception.

Without a will

Each child gets an equal share, regardless of need
An outright inheritance can push the child over the $2,000 limit
SSI and Medicaid can be lost until the money is spent down
The shortfall falls on the siblings

With a plan

You decide who receives what, and how
Assets for the disabled child go into a trust or ABLE account
Benefits stay protected
Siblings aren't left carrying the load

Equal isn't always fair. A plan lets you give each child what they actually need.

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Three Practical Ways to Provide Better Protection

Families can take deliberate steps so that equal does not become inequitable.

Create a Will

A will lets you decide exactly who receives what. You can direct greater support to the child who needs it most. Avoid leaving money outright to a person with a disability, as this can disqualify them from benefits.

Use an ABLE Account

Texas opened its ABLE program in 2018. These tax-advantaged accounts are now available to individuals whose disability began before age 46. Funds generally do not count against the Medicaid asset limit, and the first $100,000 is disregarded for SSI. The annual contribution limit is $20,000 in 2026.

Learn more: Texas ABLE Account: The Complete Guide

Establish a Special Needs Trust

A third-party special needs trust is one of the strongest tools available. It can be funded during life or through a will at death. Properly structured, it preserves eligibility for Medicaid and SSI and is not subject to Medicaid payback. The trustee has clear authority to use the assets solely for the beneficiary's benefit.

Learn more: Pooled vs. Individual Special Needs Trust in Texas

These tools are often combined. A will can pour assets into a special needs trust, and the trustee can later contribute to an ABLE account within the annual limits.

The Value of a Complete Plan

A simple will is better than no plan, but the strongest protection comes from building the will into a full special needs plan. Coordinating a will, an ABLE account, and a special needs trust around your family's specific situation can prevent confusion, conflict, and hardship later.

Taking action now gives a child with special needs greater security and eases the burden on the rest of the family.

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The Special Needs Family Financial Planning Guide

A will is just one piece. This guide walks through the priorities for a complete, coordinated plan: wills, trusts, ABLE accounts, benefits, taxes, and retirement.

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This blog is for educational purposes only. It is not personal legal or financial advice. Always talk with a qualified estate planning attorney and special needs planning professional about your own situation. This blog was initially posted on August 24, 2026. Updated to improve visual appeal on October 5th, 2026.